Immigration
Update on New Immigration Actions by President Biden
By Dilip Patel
A lot of media attention was devoted to the announcement on June 18, 2024, by President Biden of new actions for people who have been here many years to keep American families together and allow more young people to contribute to our economy.
First, it is important to note that note that these programs have not yet started. You cannot submit an application at this time. Details on how to apply will not be released until the end of the summer through a Federal Register notice.
These actions will be aimed at helping certain undocumented individuals in the United States, including certain spouses of U.S. citizens and college educated Deferred Action for Childhood Arrivals (DACA) recipients.
Spouses of U.S. citizens
Spouses and children of U.S. citizens who do not have proof of legal entry and have been living in this country for at least 10 years. Such spouses may be eligible to apply for the green card without leaving the U.S., if, as of June 17, 2024, they had lived in the U.S. for at least 10 years and never left; and were legally married to a U.S. citizen (or, in case of children, the child had a qualifying stepchild relationship with a U.S. citizen parent).
Under the current process, such spouses would have to process their immigrant visas at a U.S. Consulate abroad and would need a waiver of the 10-year bar which would apply on the day they leave the U.S. for the consular interview. The new actions are aimed at allowing such qualifying spouses to apply for Adjustment of Status and obtain the Green Card in the U.S. without departure.
It is estimated that this may benefit approximately half a million spouses of U.S. citizens, and about 50,000 noncitizen children under the age of 21 whose parent is married to a U.S. citizen. The plan is to use a concept known as “Parole in Place”. Parole would be granted for a one-time period of three years along with employment authorization for up to three years. The grant of the parole would enable eligibility to apply for the green card. The applicant would still need to show that they do not have a negative criminal history or pose a threat to national security or public safety.
College Educated DACA recipients and Dreamers
The White House Fact Sheet also stated that the announcement, “will allow individuals, including DACA recipients and other Dreamers, who have earned a degree at an accredited U.S. institution of higher education in the United States, and who have received an offer of employment from a U.S. employer in a field related to their degree, to more quickly receive work visas.”
However, no further details were provided. The Department of State followed with further guidance with the following Q & A. Bottom Line, if the applicant is qualified for a visa like the H-1B but are prevented from getting it because of prior unlawful presence, they could be eligible for a waiver of the 3- or 10-year bar (the “D3 Non-immigrant Waiver”).
Q: What will these process clarifications mean for current NIV ineligibility waiver processing steps?
These clarifications will describe when consular officers should consider recommending that the Department of Homeland Security (DHS) waive ineligibility for these applicants on an expedited basis, in conjunction with visa applications overseas. However, the processing steps will remain the same.
Waiver requests are adjudicated by the DHS, U.S. Customs and Border Protection’s Admissibility Review Office.
For additional information related to visa ineligibility waivers, visit Ineligibilities and Waivers: Laws (state.gov).
Q: If an applicant needs a visa ineligibility waiver, how can they request one as part of a standard interview?
Applicants who are denied a visa will generally be notified by the consular officer of the basis for the ineligibility, and whether they are eligible for a waiver of their ineligibility.
If an applicant is ineligible for a visa based on certain grounds of inadmissibility in Section 212(a) of the Immigration and Nationality Act, they may be eligible for a waiver.
Waiver requests are adjudicated by the DHS, U.S. Customs and Border Protection’s Admissibility Review Office, based on a recommendation from the Department of State.
Q: How will forthcoming edits to the Foreign Affairs Manual (FAM) clarify existing guidance to consular officers?
Upcoming FAM updates will clarify when consular officers should recommend that DHS grant a waiver of the applicant’s ineligibility, consistent with the waiver process that is already available under existing law to individuals seeking nonimmigrant visas, and consistent with department regulations that describe the types of cases in which consular officers should consider recommending a waiver of ineligibility. It does not confer any new benefits and is not limited to DACA recipients.
These updates will also encourage consular officers to consider recommending expedited review of waiver requests in conjunction with certain nonimmigrant visa applications overseas, consistent with existing Department regulations and guidance.
While leaving the U.S. to apply for a visa is not without risks, this policy will clarify when consular officers should consider recommending waivers, so that individuals and employers can make informed decisions and streamline the process so that those who qualify can get to work quickly.
Get the right help
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email [email protected]